“the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”-- Dickens in Oliver Twist
A 29-year-old woman has filed a lawsuit seeking the removal of her name from the Georgia sex offender registry. Wendy Whitaker was convicted 12 years ago of having oral sex with a classmate who was three weeks shy of his 16th birthday. Whitaker had just turned 17, so the two--both high school sophomores at the time--were a little more than a year apart in age. Ever since her conviction, Whitaker has been forced to register as a sex offender and she is not permitted to live within 1000 feet of designated gathering places for children.
The problem here is that legislators don't do very well when they try to base law on presumptions about psychic reality. The age of legal consent is a blunt device for dealing with matters related to the murky, ambivalent, intrapsychic world of sexuality. Although teenagers need protection from adults who would exploit them, the reality is that they do make choices that may technically run afoul of the law even though it isn't always clear that anyone involved is either a victim or a perpetrator. The only victim in the Whitaker case would appear to be Whitaker herself. She was above the age of consent, but still a minor at the time that the state decided she must pay for the rest of her life for having oral sex with a boy nearly her own age.
There is no simple legislative solution that will guarantee a just outcome in every case like this one. Mark Draughan is wary of sex offender registries, in general. Saletan has suggested that we should lower the age of sexual consent to reflect physiological reality. Perhaps the problem is that legislators have handcuffed judges with mandatory penalties that are grossly innappropriate to cases involving teen sexuality. I wonder if we might do better letting judges have more discretion to grapple with the psychological realities of maturity and consent.